Challengers in two politically tinged cases before the Supreme Court this week face the seemingly insurmountable problem of being unable to count to five — as in five votes.
The death of Justice Antonin Scalia has deprived conservatives of a reliable vote on a range of issues, including the design of congressional districts in Virginia and the Obama administration’s effort to accommodate faith-based groups that object to paying for contraceptives as part of their health insurance plans.
In those two upcoming cases, Republican members of Congress from Virginia and the not-for-profit hospitals, colleges and charities appear unlikely to win the vote of at least one of the four liberal justices, based on the outcome of earlier, related cases.
The cases illustrate the changed environment after Scalia’s death, even before a new justice is confirmed to take his place. President Barack Obama last week nominated Merrick Garland, an appellate judge, but Senate Republicans said they would not vote on the nomination or even hold hearings.
In Monday’s arguments, former and current congressional Republicans want the court to reinstate a congressional map drawn by Virginia lawmakers.
A lower court threw out the map, concluding that lawmakers illegally packed black voters into one district to make adjacent districts safer for Republican incumbents. The dispute concerns Virginia’s 3rd Congressional District, which is the only one in the state with a majority of African-American residents. Represented by Democrat Bobby Scott, the district runs from north of Richmond to the coastal cities of Norfolk and Newport News. Its shape has been described as a “grasping claw.”
Scott’s is one of 11 congressional districts in Virginia. Republicans who controlled the state Legislature when the new map was drawn in 2012 created districts that elected eight Republicans and three Democrats. At the same time, Democrats carried Virginia in the past two presidential elections and hold both Senate seats and the governor’s office.
The lower court has since drawn a new congressional map for use in this year’s elections. Even before Scalia’s death, Republicans failed to persuade the Supreme Court to delay the use of the new map while the case is under appeal.
“That suggests a higher likelihood that it will agree with the lower court’s findings,” said Derek Muller, a Pepperdine University law professor.
On Wednesday, the court will take up an appeal from religious not-for-profit groups claiming they remain complicit in providing morally objectionable contraceptives to women covered under their health plans, despite an arrangement devised by the Obama administration that spares employers from paying for the birth control.
The groups have to notify the government so that their insurers or third-party administrators can take on the responsibility of paying for the birth control. The employer does not have to arrange the coverage or pay for it.
Among the challengers are Bishop David Zubik, head of the Catholic Diocese in Pittsburgh; the Little Sisters of the Poor, nuns who run more than two dozen nursing homes for impoverished seniors; and evangelical and Catholic colleges in Oklahoma, Pennsylvania, Texas and Washington, D.C.
Houses of worship and other religious institutions whose primary purpose is to spread the faith are exempt from the requirement in the Obama health care overhaul to offer birth control.
In 2014, the justices divided 5-4, with Scalia in the majority, to allow some “closely held” businesses with religious objections to refuse to pay for contraceptives for women. That case involved the Hobby Lobby chain of craft stores and other companies that said their rights were being violated under the 1993 Religious Freedom Restoration Act. The nonprofit groups are invoking the same law in asking that the government find a way that does not involve them or their insurers if it wishes to provide birth control to women covered by their health plans.
Nationwide, eight appeals courts have sided with the administration and one has ruled for the groups. A 4-4 outcome would leave a mess because different rules would apply in different parts of the country. The Supreme Court takes on cases to lay down nationwide rules.
Mark Rienzi, a Washington lawyer who represents the faith-based groups, said the case for the challengers is even stronger than it was in Hobby Lobby.
The health care exchanges that provide subsidized insurance for millions of Americans were not yet up and running when the Hobby Lobby case wound through the courts. Now, Rienzi said, women who want contraceptives and cannot get them from employers have an option. “There’s no reason at all that the government can’t have people get it on the exchanges,” he said.
But Dawn Johnsen, an Indiana University law professor who supports the administration in this case, said there is reason to think Justice Anthony Kennedy will join the liberal justices who dissented two years ago. Kennedy wrote separately to underscore the government’s interest in the health of women covered by employer health plans and approvingly cited the accommodation that is now being challenged.
Five justices already have recognized “the compelling interest in women’s health served by access to effective contraception,” Johnsen said.
The Associated Press contributed to this article.
I’m not a fan of gerrymandering, but creating a predominantly black district does increase the likelihood that a black person will represent Virginia in the House.
I would like to see Congress deal with the birth control issue. Employers should be able to exempt coverage based on the faith convictions of the owner. In America no one is forced to work for a particular employer. If someone wants contraceptive coverage they can either pay for it themselves or find a different employer. It’s odd that when the liberals are out of power they demand provisions be made for those with different viewpoints but when they are in power they expect everyone to embrace their worldview.
I think a Supreme Court ruling against these non-profits will show why the Republican leadership doesn’t want to hold hearings to fill the Scalia seat. The liberal wing of the Supreme Court has no problem ignoring the Constitution and its protections. The Supreme Court was not intended to be the governing body for the nation. If they are going to make laws then they should face the voters on a regular basis. I’m tired of this panel of anti-Constitution judges overriding the will of the people. It’s time for “we the people” to rein in our activist judiciary.
Between Obama and the Supreme court, they HAVE become the governing body for the nation with Obama holding the whip hand They do what Obama wants not what the people want Same as the way the liberal mainstream media is pushing Cruz for republican nominee What a shock the GOP has in store for Cruz if by some fraud, he gets it. Then the GOP can put forth who THEY want Think about it, folks!!
This is one important reason the Republican Senators should grudgingly confirm Judge Garland for the US Supreme Court. Durin President Bush’s term the Republicans confirmed this same judge for the Washington, D.C. District Court. So, he is qualified. And this is the best hope as far as a nominee from President Obama. (Could he be worse than Judge Roberts?) Plus the backlog of unheard cases will be a major problem. Do your duty, Senators. Give him a fair hearing and vote.
Sure wish I knew who wrote this. I went back and copiedit towered again, and now I’m sharing it with you.
“It’s not shocking to US, WE THE PEOPLE, that the “establishment” candidates are arguing over who is more conservative. The bureaucrats, the establishment, rich donors and liberal media would like Us to join in and get sucked in. They are very afraid of the “revolution” that is unfolding in front of their eyes. We are taking Our Country back! We are tired of the lies, the deceit, and the politicians telling us what we want to hear then doing what the big money tells them they must do…to Our detriment. Tax, tax, tax and spend more!! This must stop. The recent voting results are forecasting our undeniable destiny. The recent polls that never would have been possible without the immediate and fingertip technology we have today are one of our saviors. The Convention of States is another. It’s a perfect storm for Us, WE THE PEOPLE! The pundits are afraid but it is coming and in a big way. For the first time We have a candidate that is not taking the back and front door money and it’s not the establishment’s. That money is corrupt and it turns well-intended beginners and life-time politicians into corrupt puppets for the pundits. So no, the pundits don’t want us to think we know what we’re doing. They don’t want us to revolt and reject the candidates they tell Us we must have. They don’t want Us to think with our own brains while we tell them to “PISS OFF!”. No, We will not engage in “who is more conservative”. They see and feel it coming and FINALLY, they are limited to do anything about it! In reality, they want Us to be quiet little sheep and nod to their directives…Establishment, try to tell Donald Trump how to act, what to do, where to spend, to tax more, what legislation to pass and to stay with the status quo so your pockets remain velvet-lined. He will build a wall, he will slash budgets, he will reduce government spending, he will balance the budget, he will lower taxes, he will reject illegals and send them packing, he will eliminate lobbyists and big donor mentality, he will bring our jobs back and WE will prosper from it. You are close to being out of the loop which means WE THE PEOPLE will get back in control…THE WAY IT WAS MEANT TO BE by our founding Fathers! If WE let this slip through OUR fingers, we have missed an incredible opportunity for OUR Country. LET’S TAKE AMERICA BACK, send the pundits to the curb AND MAKE OUR COUNTRY SAFE AND GREAT AGAIN!! Get on the Trump wagon and we can right this mighty ship!!”
And in reply to this, I will say: How right you are!! And the oath breaking, back stabbing, lying GOP, RINOs and DEMS – all support the N.W.O. agenda!! They have made a cesspool out of the political arena. If you want the USA to continue as a true democracy the cesspool needs to be thoroughly cleansed of those professional bought-and-paid for politicians who are trained to be puppets on a string for special interest groups. The “silent majority” is no longer silent!! We are ANGRY! WE ARE FED UP WITH THEM – BIG TIME! Okay, Trumpsters, let’s show everyone a MAJOR landslide!! A landslide like they’ve never seen before! We can do it!! And we’ll bury these anti-Trump, oath breaking, backstabbing, lying GOP establishment, liberal media, and DEMS under it!!
Hey, Eleanor, I am stating the fact that Judge Garland has already been vetted and approved by a Republican Senate under Mr. Bush. No ranting and raving by you can change this fact. Elections mean something. During the past couple of elections Mr. Obama was elected by the majority of voting Americans. So he has the privilege and obligation to nominate a Supreme Court Justice. Those of you that don’t appreciate this fact should have been more involved in the election process. Get involved at the ‘grass roots’ level. Learn who the candidates are and their positions. Make informed and educated votes. Don’t just scream and yell and act like babies when a President Obama is elected!!
TRUMP IS NOT the answer…. So true is it that all these LYING politicians are SWINE. It is also TRUE that Trump is saying what everyone WANTS to hear. Trump is Rude, Arrogant, Mad Disrespectful towards women, in a sense he has Diarrhea of the Mouth. This DOES NOT make him GOOD FODDER for a Presidential Candidate. If only we could come up with a good Candidate that makes sense. NONE of the Candidates are Appealing, but I wont vote for an A**hole just because he says what the American people are dying to hear.